Legal Notices: Website Terms of Use

These TwinStrand Terms and Conditions located at https://twinstrandbio.com/legal/ (the “Terms”), together with any applicable Order as defined herein (collectively, the “Agreement”), constitute a binding agreement between TwinStrand Biosciences, Inc. (“TwinStrand”) and Customer (each, a “Party”). Customer accepts and agrees to be bound by these Terms as of the Effective Date by (a) executing an Order that references these Terms, or (b) by using TwinStrand’s Products or Services. These Terms, including and together with any terms included in any related Order(s), constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. Customer’s terms (including purchase order terms), if any, are inapplicable. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of these Terms and any Order, these Terms will supersede and control, unless TwinStrand expressly agrees in writing that the specified provision in the Order will control over a specified conflicting provision in these Terms.

1. Definitions

1. 1. 1. “Authorized User” means Customer’s personnel, including, without limitation, employees, consultants, contractors, students, interns, and agents, who are authorized by Customer to access and use the Platform subject to the terms of this Agreement. For clarity, Customer shall not authorize any third party user as an Authorized User.

    

   1. 1. “Customer” means the legal entity that executes an Order or uses the Services or Product.

    

   1. 1. “Customer Data” means any data uploaded to the Platform by Customer, and any resulting error-corrected data, non error-corrected data, analysis, results, metrics or other data in text, tabular, graphical or other form generated on the Platform based on this uploaded data.

    

   1. 1. “Documentation” means information or documentation in any medium provided to Customer by TwinStrand, whether physically, electronically, as available download, or by any other means, regarding or for use in connection with a Product or Service.

    

   1. 1. “Effective Date” means the earliest of (i) the date the Customer executes an Order, (ii) the date the Customer issues a Purchase Order; or (iii) the date the Customer first uses a Product or Service.

    

   1. 1. “Fee” has the meaning set forth in Section 5(a).

    

   1. 1. “Intellectual Property” means all: (i) works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (ii) trademarks, service marks, trade dress, logos, trade names, domain names, URLs and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith; (iii) trade secret rights; (iv) patent and industrial property rights, including patents and utility models; (v) other proprietary rights in intellectual property of every kind and nature; and (vi) registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for (i) through (v) of this paragraph.

    

   1. 1. “Order” means a purchase order issued by Customer, a quote issued by TwinStrand and executed by Customer, or other written agreement executed by TwinStrand and Customer.

    

   1. 1. “Product” means a TwinStrand^™ Duplex Sequencing^™ Kit (each, a “Kit”) and all components, whether within the Kit box, accompanying it, or shipped separately, including reagents, Documentation, packaging, and other items sold by TwinStrand separately from a Kit.

    

   1. 1. “Professional Services” means implementation services, technical support, R&D services, and other assistance performed for Customer by TwinStrand personnel, as specified in an Order.

    

   1. 1. “Platform” means the cloud-based Software-as-a-Service TwinStrand^™ DuplexSeq^™ Software on the DNAnexus^® Platform or other hosting platform as determined by TwinStrand

    

   1. “Services” means the Platform, the Professional Services, and such other services as may be listed in the Order.

2. 2. Product and Services.

2. 2. 1. Order. Subject to the terms and conditions of the Agreement, Customer engages TwinStrand to perform the Services and provide the Products to Customer described in an Order. Any additional or modified Services or Products will be under a separate Order.

2. 2. 1. Documentation. Subject to the terms and conditions in this Agreement, TwinStrand hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of Products and Services. Customer may not (i) copy, reproduce, display, perform, modify, create derivative works, transmit, or in any way use the Documentation except as necessary to allow Customer to use the Products and Services pursuant to these Terms, (ii) refurbish, remanufacture, rent, lease, lend, sell, license, share, sublicense, assign, distribute, publish, transfer, or otherwise make available the Documentation to any third party, (iii) use the Documentation to construct any kind of database except for internal non-commercial purposes, (iv) remove any proprietary notices from the Documentation, (v) use the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law or regulation.

2. 2. 1. Product
         
         1. Delivery. Unless otherwise agreed in writing by the Parties, TwinStrand shall deliver the Products specified in the Order to the location provided in the Order (the “Delivery Point”) using TwinStrand’s standard method for packaging and shipping such Products. Delivery of the Products shall be made for Free On Board (“FOB”) shipping point, and all deliveries to destinations outside the U.S. are Free Carrier (“FCA”) Origin (ICC Incoterms 2010) TwinStrand’s or its designee’s shipping dock. Title and risk of loss passes to Customer upon delivery of the Products at the shipping point. TwinStrand does not guarantee any delivery dates and shall not be responsible for any loss or damage of any kind or nature whatsoever caused by any delay in delivery irrespective of the cause of such delay, except as set forth in Section 2(c)(ii).

2. 2. 1. 1. Inspection. Customer shall inspect the Products within five days of receipt (the “Inspection Period”), and will be deemed to have accepted the Products unless it notifies TwinStrand in writing of any Nonconforming Product during the Inspection Period and furnishes such written evidence or other documentation as required by TwinStrand. “Nonconforming Product” means only the following: (A) a Product shipped is different than identified in an Order; (B) a Product’s label or packaging incorrectly identifies its contents; or (C) a Product shipped by TwinStrand’s designated shipper is damaged on arrival as a result of shipping or handling not in conformance with TwinStrand’s guidelines or instructions. If Customer timely notifies TwinStrand of any Nonconforming Product, TwinStrand shall, at its sole discretion, (A) replace such Nonconforming Product with conforming Product, or (B) credit or refund the Fee for such Nonconforming Product, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Product to TwinStrand unless waived by TwinStrand. If TwinStrand exercises its option to replace Nonconforming Product, TwinStrand shall, after receiving Customer’s shipment of Nonconforming Product, ship the replacement Product to Customer. Customer acknowledges and agrees that the remedies set forth in this section are Customer’s exclusive remedies for the delivery of Nonconforming Product. Except as provided under this section, all sales of Products to Customer are made on a one-way basis and Customer has no right to return purchased Products to TwinStrand.

2. 2. 1. Services
         
         1. Subject to these Terms, TwinStrand hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Platform during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein, and no other use is authorized hereunder. Such use is limited to Customer’s internal use. TwinStrand shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Platform. Each account login to the Platform will be limited to a single Authorized User unless expressly stated otherwise in the Order or by express written authorization from TwinStrand.

2. 1. 1. TwinStrand may, from time to time, change the Platform without the consent of Customer, including but not limited to changing the features and functionality of the Platform, or imposing usage or data storage limitations, which shall not affect the fees or any performance dates set forth in the Order. If, following an Order, any new version, upgrade, or other change in the Platform causes compatibility issues with Customer Data uploaded or generated using the Services in place at the time of the Order, TwinStrand will use reasonable commercial efforts to assist customer in migrating such Customer Data to the new, upgraded, or changed Platform.

3. 3. Use Restrictions

3. 3. 1. Customer acknowledges that the Products and Services do not have United States Food and Drug Administration (“FDA”) or equivalent non-U.S. regulatory agency approval (“Approval”). Accordingly, Customer acknowledges that the Product and Services are intended FOR RESEARCH USE ONLY and NOT FOR CLINICAL OR DIAGNOSTIC USE. The Products and Services should be used by qualified professionals in strict accordance with applicable instructions, warnings and other information in user manuals and other Documentation. Unless otherwise expressly stated by TwinStrand in writing, no claim or representation is made or intended by TwinStrand (i) as to any diagnostic or other clinical use of the Products or Services; (ii) that any Product or Service has any Approval for use in any diagnostic or other clinical procedure, or for any other use requiring compliance with any law, regulation or governmental policy concerning medical devices, laboratory tests or the like (collectively, “Regulatory Laws”); (iii) that any Product or Service will satisfy the requirements of the FDA or any other regulatory agency; or (iv) that any Product or Service or its performance is suitable or has been validated for clinical or diagnostic use, for safety and effectiveness, for any specific use or application, or for importation into Customer’s jurisdiction. Customer agrees that if it elects to use a Product or Service for a purpose that would subject Customer, its customers, or any Product or Services to the application of Regulatory Laws or any other law, regulation or governmental policy, Customer shall be solely responsible for obtaining any required Approvals and otherwise ensuring that the importation of the Product and Services into Customer’s jurisdiction and Customer’s use of Products and Services complies with all such laws, regulations and policies. The burden of proof for safe use and handling of Products sold to Customer is entirely the responsibility of Customer.

3. 3. 1. Customer will anonymize and de-identify all Customer Data it provides to TwinStrand or uploads to the Platform in compliance with all foreign, internal, state, federal or local privacy laws and regulations to which Customer is subject, including but not limited to U.S. Health and Information Portability and Accountability Act , the European General Data Protection Act, and the California Consumer Privacy Act, such that (i) the Customer Data will not include “Protected Health Information,” “Personal Data,” “Personal Information,” or otherwise include any personal information as defined by the applicable law, and (ii) the Customer Data cannot be re-associated with or used to identify any individual in accordance with applicable law.

3. 3. 1. Customer shall not use the Products or Services for any purposes beyond the scope of the access granted in this Agreement and the Documentation. Customer shall not at any time, directly or indirectly, permit any Authorized User to: (i) copy, reproduce, display, perform, modify, create derivative works, transmit, or in any way use the Products or Services, in whole or in part except as expressly permitted by these Terms; (ii) refurbish, remanufacture, rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Products or Services to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Products or Services, in whole or in part; (iv) remove any proprietary notices from the Products or Services; or (v) use the Products or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law or regulation.

3. 3. 1. Customer will only permit its Authorized Users to access the Platform in compliance with this Agreement. Customer is fully liable for the acts and omissions of its Authorized Users.

4. Suspension. Notwithstanding anything to the contrary in these Terms, TwinStrand may temporarily suspend Customer’s and any Authorized User’s access to or use of any portion or all of the Platform if: (a) TwinStrand reasonably determines that (i) Customer’s or any Authorized User’s use of any of the Platform disrupts or poses a security risk to the Platform or to any other customer or vendor of TwinStrand; (ii) Customer, or any Authorized User, is using the Platform for fraudulent or illegal activities; (iii) Customer’s or any Authorized User’s use of the Platform exceeds standard use limitations as determined by TwinStrand; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) TwinStrand’s determination that its provision of the Platform to Customer or any Authorized User is prohibited by applicable law; or (b) for Customer’s failure to pay undisputed Fees. TwinStrand shall use commercially reasonable efforts to provide written notice of any suspension to Customer and to provide updates regarding resumption of access to the Platform following any suspension. TwinStrand shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the suspension is cured. TwinStrand will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a suspension.

5. 5. Prices and Payment.

5. 5. 1. Prices. Customer shall pay the fees set out the applicable Order (the “Fees”).

5. 5. 1. Payment. Unless otherwise provided in the applicable Order, Fees are payable within 30 days of the date of an invoice. Other than income taxes imposed on TwinStrand, Customer is responsible for any applicable taxes, including without limitation, any sales, use, levies, duties, tariffs or any value added or similar taxes payable with respect to the Products and Services assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in any Order, all fees, rates and estimates exclude sales taxes if applicable.

5. 1. Payment Disputes.All undisputed late payments will bear interest at the lesser of the rate of 1% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse TwinStrand for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which TwinStrand does not waive by the exercise of any rights hereunder), TwinStrand shall be entitled to suspend the provision of any Products and Services if Customer fails to pay any undisputed fees when due hereunder.

6. 6. Proprietary Rights.

6. 6. 1. TwinStrand Ownership. TwinStrand owns all right, title and interest in the Product, Platform, and Documentation, including all associated Intellectual Property, and all rights to enforce the foregoing, and all other equivalent rights that may exist anywhere in the world.

6. 6. 1. Customer Ownership. TwinStrand acknowledges that, as between TwinStrand and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. In support of TwinStrand’s efforts to provide an optimal user experience to Customer, Customer hereby grants to TwinStrand a non-exclusive, royalty-free, worldwide license to reproduce, distribute, use, display and perform such other acts with respect to the Customer Data as may be necessary for TwinStrand to provide the Services to Customer. Notwithstanding the foregoing, TwinStrand will not publicly disclose or display Customer Data without Customer’s prior written permission.

6. 6. 1. Improvements. Except to the extent prohibited by applicable laws, Customer hereby grants to TwinStrand a non-exclusive, worldwide, fully sublicensable, fully paid-up, royalty-free, irrevocable, perpetual license to all Product and Services Improvements. Customer shall promptly disclose any Product and Services Improvements to TwinStrand. For this purpose, “Product and Services Improvements” means all intellectual property rights (including patent and similar rights like utility models) on inventions conceived or reduced to practice by or for Customer that arise out of the use of Products or Services (or the adaptation, modification or reverse engineering of any Product(s), in violation of these Terms), and which relate to (i) improvements, additions, alternatives, or modifications to the Products or Services, (ii) development, design, manufacturing, layout, packaging, protocols or methods for using any Products, alone or with other Products or other devices and/or reagents; and (iii) interfaces between any Products and other devices, including but not limited to sequencing systems, thermal cycling systems, and robotics for use in connection with any Products. Product Improvements shall not include data resulting from using Products or Services (e.g., results of assays or sequencing of samples prepared using Products) or discoveries derived from such data (except to the extent covered by (a), (b), or (c) above). For purposes of this section, the term “Customer” shall include Authorized Users, irrespective of being legal employees of Customer, and Customer shall have the necessary agreements in effect with all such Authorized Users to enable Customer to comply with this section.

6. 1. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to TwinStrand by mail, email, telephone, verbally or otherwise, suggesting or recommending changes to the Product, Services or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), TwinStrand is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to TwinStrand on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and TwinStrand is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. TwinStrand shall have no obligation to use any Feedback.

7. 7. Term and Termination.

7. 7. 1. Term. Unless specified otherwise in an Order, the Agreement will remain in effect until the later of (i) twenty-four months from the Effective Date or (ii) twelve months after Customer Data is uploaded onto the Platform, unless terminated earlier pursuant to Section 7(b) or extended by written agreement of the Parties (the “Term”).

7. 7. 1. Termination.

7. 7. 1. 1. Either Party may terminate the Agreement or any affected Order by written notice to the other if the other Party materially breaches its obligations under the Agreement or an Order and, if the breach is capable of cure, fails to cure the breach within 30 days from the date of written notice of breach.

7. 7. 1. 1. Either Party may terminate the Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

7. 7. 1. 1. TwinStrand may terminate the Agreement, effective upon written notice to Customer, if Customer (A) fails to pay an undisputed amount when due, or (B) breaches Section 3 (Use Restrictions).

7. 7. 1. Effect of Termination. Upon expiration or earlier termination of the Agreement, (i) Customer shall immediately discontinue use of the Platform and return or destroy any unused Product and TwinStrand Confidential Information, and (ii) at Customer’s written request, TwinStrand will destroy all Customer Data and other Customer Confidential Information except as set forth in this Section 7(c). Up to 60 days after termination of the Agreement Customer may request TwinStrand to return Customer Data, in which case TwinStrand shall either (i) provide Customer with limited access to the Platform, at no additional cost, solely for the purpose of retrieving Customer Data; or (ii) provide an export file of Customer Data stored on TwinStrand’s systems in a commonly used format reasonably determined by TwinStrand and subject to TwinStrand’s standard fees for such export. TwinStrand may, but shall have no obligation to, maintain or return Customer Data more than 60 days after termination of the Agreement. TwinStrand shall in any event have the right, but not the obligation, to maintain one copy of Customer Data for archival purposes which shall be treated as Customer’s Confidential Information pursuant to Section 8. No expiration or termination of the Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, except termination by Customer under Section 7(b)(i) above, or entitle Customer to any refund.

7. 1. Survival. The rights and obligations set forth in Sections 1, 5, 6, 7(c), 8, 10, 11 and 12, and any right or obligation of the Parties which, by its nature, should survive termination or expiration of these Terms, will survive any such termination or expiration of these Terms.

8. 8. Confidentiality.

8. 8. 1. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information that would reasonably be understood by the Receiving Party to be confidential, regardless of the form of disclosure (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 8 is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Disclosing Party’s Confidential Information; (ii) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder without confidentiality obligations; or (iii) was or is independently developed by employees, agents, or consultants of Receiving Party not having access to the Disclosing Party’s Confidential Information. TwinStrand’s Confidential Information includes, without limitation, the Product, Services and Documentation. For clarification, (i) Product and Services Improvements shall be treated as Confidential Information of Customer, and (ii) Feedback shall be treated as Confidential Information of TwinStrand, provided, however, that each Party may use and disclose such Confidential Information as necessary to allow such Party to exploit its rights under Sections 6(c) and 6(d) respectively.

8. 1. The Receiving Party, including, in the case of Customer, all Authorized Users, shall: (i) protect the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as it would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; and (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement. Receiving Party shall not disclose the Disclosing Party’s Confidential Information other than to its employees, representatives, and agents (collectively, “Representatives”) who: (i) need access to such Confidential Information in connection with this Agreement, (ii) are informed of its confidential nature; and (iii) are bound by written confidentiality obligations no less protective of the Confidential Information than the terms contained herein. If the Receiving Party is required by applicable law or legal process to disclose any of the Disclosing Party’s Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. The Receiving Party will disclose only such information as is legally required and will use commercially reasonable efforts to obtain confidential treatment for any of the Disclosing Party’s Confidential Information that is so disclosed.

9. 9. Warranties.

9. 9. 1. Mutual Warranties. Each Party represents and warrants to the other Party that (i) it has the authority to enter into and perform its obligations under the Agreement; (ii) the Agreement does not conflict with any other agreement entered into by it; and (iii) it does not conduct business for any unlawful purpose.

9. 9. 1. Customer Warranties. Customer represents and warrants that: (i) the information Customer provides in connection with the Services, including billing information and Orders, is current, accurate, and complete; (ii) Customer has received all necessary consents as required by applicable law and regulation from any individual whose information is shared with TwinStrand, if applicable; and (iii) Customer is not on the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated Nationals and Blocked Persons, or any similar list of embargoed or blocked persons applicable to persons or entities in the jurisdiction of Customer’s domicile or use of the Services.

9. 9. 1. TwinStrand Warranties.

9. 9. 1. 1. Limited Warranty for Product.

9. 9. 1. 1. 1. TwinStrand warrants, only to Customer, that the Product will be free from defects in material and workmanship upon delivery to Customer, for use as set forth in the Documentation, until the expiration date of the Product, or for Product not having an expiration date, one (1) year from Customer’s receipt of the Product. (the “Warranty Period”). All Product warranty remedies are subject to the condition that the Product is purchased directly from TwinStrand by Customer, and warranty claims must be received by TwinStrand in writing no later than the Warranty Period. Customer’s exclusive remedy, and TwinStrand’s sole liability and obligation, under this warranty is to replace, or, at TwinStrand’s option, give a refund for, any Product not meeting the above warranty for which written notice is provided to TwinStrand within the Warranty Period. If the defect(s) in material and workmanship diminished but did not prevent performance of the Product, any amount refunded may be apportioned according to TwinStrand’s reasonable allocation of the value of the diminished performance. The decision of whether to replace the Product or give a refund will be made by TwinStrand in its sole discretion. This limited warranty is subject to certain exceptions listed below.

9. 9. 1. 1. 1. The foregoing warranties shall not apply to, and shall be void for, any Product that: (i) is subject to improper or abnormal use or storage, abuse, neglect, negligence, accident, including without limitation failure to properly perform routine maintenance and maintain the Product site in accordance with Documentation, if any; (ii) is used after any “use by” date or other expiration date recommended by TwinStrand; (iii) is used with any non-TwinStrand product or software (except as may be specifically recommended, with respect to standard laboratory reagents, tools and equipment ancillary to use of the Product, in the then-current Documentation for that Product) (iv) is not used and stored in accordance with Documentation; (v) is used for more than the number of tests or biological samples per unit of Product stated in the Order; (vi) is repaired, altered, disassembled, reassembled or removed from Customer’s facility by persons other than TwinStrand or its designee; or (v) has failed due to externally-caused short circuits, incorrect voltages, failure or fluctuation of electrical power, lightning, static or other improper external inputs, or due to civil unrest, threat of or actual acts of terrorism or war, embargoes, governmental actions, Acts of God, earthquakes, floods, storms, fires, supplier delay, accidents, explosions, epidemics, pandemics or other plagues, quarantine restrictions, or other such contingencies beyond the reasonable control of the applicable Party.

9. 9. 1. 1. Limited Warranty for the Platform. TwinStrand warrants, only to Customer, that the Platform as used as set forth in the applicable Documentation, will function substantially as described in such Documentation during the Warranty Period, subject to Section 2(d)(ii). Customer’s exclusive remedy, and TwinStrand’s sole liability and obligation, under this warranty are limited to using reasonable efforts, commensurate with the severity of the nonconformity, to correct, or, at TwinStrand’s option, giving credit for, any substantial nonconformity of the Platform. The decision of whether to correct the Platform or give a refund will be made by TwinStrand in its sole discretion. TwinStrand does not warrant that use of Platform will be uninterrupted or error free, or that any particular Platform warranty nonconformity will be corrected, or a workaround provided, within any particular time frame. This limited warranty is subject to certain exceptions listed below. The foregoing warranties shall not apply to, and shall be void for, any failure of the Platform to conform that is caused by (A) the use or operation of the Platform in an environment other than that intended or recommended by TwinStrand, (B) modifications to the Platform not made or authorized by TwinStrand, (C) data connectivity problems that stem from the speed or functionality of Customer’s internet connection, or (D) use of the Platform with products other than the Product.

9. 9. 1. 1. Transfer. These warranties are not transferable or assignable, including without limitation, in any re-sale of a Product or Platform, or third-party computing system, and any such attempt to transfer or assign these warranties shall be void for any unit to which they apply.

9. 9. 1. 1. Disclaimer; No Other Warranties. THE EXPRESS WARRANTIES AND THE REMEDIES SET FORTH IN THIS SECTION 9 ARE IN LIEU OF, AND TWINSTRAND HEREBY DISCLAIMS, ALL OTHER REMEDIES AND WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT OR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), IN EACH CASE HOWEVER ARISING, INCLUDING WITHOUT LIMITATION FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, OR OTHERWISE. ANY PRODUCT OR SERVICE PROVIDED WITHOUT A WRITTEN WARRANTY FROM TWINSTRAND IS PROVIDED “AS IS” WITHOUT (AND TWINSTRAND HEREBY DISCLAIMS) ANY WARRANTY, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE. Without limiting the generality of TwinStrand’s general rejection of conflicting terms presented by Customer, and for clarification purposes only, Customer agrees that any different or additional warranty terms stated in Customer’s Terms (if applicable) shall be void and of no effect.

9. 1. 1. Third-party Disclaimers. Notwithstanding any provision to the contrary herein, and unless otherwise expressly indicated in an Order or Documentation, none of TwinStrand’s suppliers or licensors of any Product, Services, or other item provided by TwinStrand, or any portion thereof (under this Agreement or otherwise) (each, a “Supplier”) provides ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE TO CUSTOMER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE DISCLAIMED. EXCEPT AS OTHERWISE EXPRESSLY INDICATED IN THE QUOTATION OR DOCUMENTATION, IN NO EVENT SHALL ANY SUPPLIER BE LIABLE TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, DIRECT, INDIRECT OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR SALE OF THE PRODUCTS.

10. Indemnification. Customer shall indemnify TwinStrand, defend and assume the settlement of, and the defense of any suit or suits or other legal proceedings brought to enforce all losses, damages, injuries, claims, demands, and expenses (“Liability”) arising out of its and its Authorized User’s use of Products or Services, regardless of where, how, and by whom used, and shall pay all judgments entered in any such suit or suits or other legal proceedings, except for Liability resulting from TwinStrand’s gross negligence of willful misconduct.

11. Limitation of Liability.
    
    1. 1. No Consequential or Indirect Damages. EXCEPT LIABILITY FOR INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACH OF SECTION 8 (CONFIDENTIALITY), AND A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THESE TERMS OR ANY ORDER TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR LOST PROFITS DAMAGES, OR THE COST OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THE AGREEMENT, REGARDLESS OF (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

     

    1. Maximum Liability. EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACH OF SECTION 8 (CONFIDENTIALITY), INDEMNIFICATION OBLIGATIONS, AND CUSTOMERS OBLIGATIONS TO PAY FEES AND EXPENSES WHEN DUE AND PAYABLE, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO TWINSTRAND BY CUSTOMER IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. TwinStrand shall have no liability for the Customer’s use of Services or Products or for any damage caused by errors or omissions in any information provided to TwinStrand by the Customer, an Authorized User, or any third party mandated by the Customer in connection with the Services or Product. TwinStrand shall not be responsible for the accidental destruction of any Customer Data, including personal data, as a result of any unauthorized access to, or use or misuse of, the Services and/or Products by the Customer, an Authorized User, or any third party mandated by the Customer.

12. 12. Miscellaneous

12. 12. 1. Arbitration. If a dispute arises from or relates to the Agreement, the aggrieved Party will provide written notice to the other Party of the dispute. Any such dispute that the Parties are unable to resolve within 30 days following written notice of the existence of the dispute must be submitted by the aggrieved Party to arbitration for resolution. The dispute will be resolved by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration will occur before a single arbitrator, with proceedings to be conducted in Seattle, Washington, U.S.A. Any court proceedings for preliminary relief, or relief in aid of arbitration, will be brought in state or federal court in King County, Washington. Any award, order, or judgment pursuant to arbitration under this provision will be deemed final and binding and may be enforced in any court of competent jurisdiction. The Parties agree that the arbitrator will have no power or authority to make awards or issue orders of any kind that are prohibited by this Agreement. All arbitration proceedings will be conducted on a confidential basis. The arbitrator may, as part of the arbitration award, permit the substantially prevailing Party to recover all or part of its attorneys’ fees and other out-of-pocket costs incurred in connection with the arbitration.

12. 12. 1. Modification. TwinStrand may modify these Terms at any time. If TwinStrand modifies these Terms, it shall provide prior written notice (“Modification Notice”) to Customer of such modifications via TwinStrand’s website, email, or paper mail at least 15 days prior to the effectiveness of the modifications. Notwithstanding the previous sentence, TwinStrand may not provide prior notice if modifications are necessary to comply with Applicable Laws but shall use commercially reasonable efforts to provide prior notice when practicable. If the modifications materially and adversely affect Customer, and Customer does not wish to accept such modifications, then Customer may terminate Customer’s subscription to the affected Service by written notice to TwinStrand within the 30-day period following the date of the Modification Notice, subject to the terms of this Section 12(b) (Modifications), and Customer shall immediately return to TwinStrand or destroy any unused Product. If Customer does not terminate the affected Service subscription as specified in this Section 12(b) (Modifications), then Customer will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice.

12. 12. 1. Trademark. Unless Customer notifies TwinStrand otherwise in writing, Customer grants TwinStrand a license to use Customer’s name and logo in lists of customers and in other marketing materials. TwinStrand grants Customer a license to use the TwinStrand name and logo in research papers, posters and presentations related to the Customer Data.

12. 12. 1. No Third-party Beneficiaries. Nothing expressed or referenced to in this Agreement will be construed to give any person or entity other than the Parties or their permitted successors and assigns expressly provided in this document any legal or equitable right, remedy or claim under or with respect to this Agreement.

12. 12. 1. Notices. Any notice required to be given under these Terms must be in writing and delivered personally, sent via confirmed email, sent by express courier or sent by registered or certified mail, postage prepaid, to the recipient’s address provided in the Order (or any other address as a Party may designate by written notice).

12. 12. 1. Force Majeure. TwinStrand shall not be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; pandemics, quarantine, or other public health crises; embargoes; riots; acts of government; or acts of terrorism or war. If the failure or delay continues for more than 30 days, Customer may, in its discretion, terminate the Agreement and any applicable Order. Such termination will not result in any liability by either Party, except that (i) TwinStrand shall provide a pro-rated refund for any prepaid Services that have been unused as of the date of termination, and (ii) Customer shall pay for all Products and Services received prior to the date of termination.

12. 12. 1. Assignment. Either Party may assign the Agreement without the other Party’s consent to an entity that acquires all or substantially all of the assets of or that is an Affiliate of the assigning Party, or through merger, provided that (i) the assigning Party must provide notice to the other Party of the assignment, (ii) the assignee must agree in writing to be bound by the Agreement, and (iii) the non-assigning Party may prohibit assignment to a competitor of the non-assigning Party or to an entity operating a business in violation of Applicable Law. Except as provided above, neither Party may assign its rights or obligations under the Agreement without the other Party’s prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign the Agreement will be null and void. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.

12. 12. 1. Export Control. Customer agrees that it will not export or transfer the Products or Service for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws.

12. 12. 1. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

12. 12. 1. Severability. If any term or other provision of the Agreement is determined to be invalid, illegal, or incapable of being enforced by any rule, law, or public policy, all other conditions and provisions of the Agreement will remain in full force and the Parties will negotiate in good faith to modify the Terms so as to affect the original intent of the Parties as closely as possible in an acceptable manner.

12. 1. Choice of Law; Jurisdiction and Venue. The Agreement will be governed by laws of the state of Washington, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction. For any claims or causes of action arising out of the Agreement, the Parties agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in King County, Washington.